The applicant, Ely Bernard Properties Limited filed a suit at the trial court on October 12, 2012, against the Implementation Committee of the White Paper on the Commission of Enquiry into the Alienation of the Federal government Landed Property and two others, claiming that the defendants had unlawfully evicted them from their property, located and situate at No. 11/13 Liverpool Road, Apapa, Lagos State, formerly known and described as No. 7 and 9 Liverpool Road, Apapa, Lagos.
They claimed ownership of the properties and the deemed holder of the Statutory Right of Occupancy of the property since 1959 and has granted several subleases over the property to different corporate bodies and had consistently paid ground rents and Land Use charges to Lagos State Government.
The lower court after considering the facts of the case, ruled in favour of the plaintiff/ 1st respondent, granting them relief for acts of trespass.
Dissatisfied with the trial court’s decision, Adewale Osomo on behalf of the appellants/defendants, filed four grounds of appeal on April 28, 2016, challenging the jurisdiction of the court on the grounds of non-service of originating process on the appellants and proceeded to deliver the judgment in favour of the 1st respondent.
In a unanimous decision by the court of appeal led by justice Ebiowei Tobi, he held that the appeal succeeds on the ground that the refusal of the lower court to hear the preliminary objection of the appellants, which borders on jurisdiction based on improper service of the originating summons, affects the right of fair hearing of the appellants.
“The objection dealing with the service of the process should have been heard since it was brought to the attention of the lower court before proceeding to the final judgment.
“This omission by the lower court affects the issue of fair hearing. The appellants were therefore denied fair hearing of their preliminary objection dealing with jurisdiction.”
“I will order a retrial of this case on merit before another Judge of the Federal High Court for accelerated hearing. The case file is to be returned to the Chief Judge of the Federal High Court for retrial before another Judge,” Justice Ebiowei held.
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